Download GENERAL ELEMENTS FOR TRESPASS TRESSPASS TO PERSON

GENERAL ELEMENTS FOR TRESPASS
*Directness
• Hutchins v Maughan (1947) VLR 131
§ P brought sheep and dogs onto D’s land – dogs ate baits and died
§ HELD: Courts held trespass did not exist as the act of laying baits was not direct
§ ‘Action on the case’ (e.g. negligence) occurs where damage exists and is consequential on D’s acts/omissions.
*Intention (and Negligence)
• Trespass generally requires intent [although negligence and recklessness may also apply in Australia], but whether or not the
intent is bad, is irrelevant
• Intent vs. Motive – there does not need to be ‘ill’ intent. (e.g. medical practitioner acting with good will but without consent of
patient will constitute a battery)
• Intent vs. Involuntary action –
§ E.g. A takes B’s hand and hits C. A has committed a batter as they have the intent
§ E.g. P imprisoned beyond completion of a sentence due to miscalculation of release date. Prison authority has committed
false imprisonment as they intend to imprison.
*Onus of Proof
• McHale v Watson (1964) 111 CLR 384
§ Boy threw sharp object at a girl, her eye was injured
§ P must prove directness
§ D must prove lack of intent or negligence
§
[Note: Onus of proof in Australia differs to that of the UK – Aust. Recognises both intent and negligence in trespass cases]
TRESSPASS TO PERSON
[Note: Only intentional trespass is examinable.]
• Three torts of trespass to the person exist to protect a person’s right to physical integrity
§ Battery: tort of battery is concerned with actual infliction of unlawful physical contact with the plaintiff
§ Assault: tort of assault deals with cases where the plaintiff is caused to apprehend the immediate (imminent infliction of
such a contact
§ False imprisonment: is concerned with the deprivation of liberty
§ NOTE: Can have all causes of action happen at once. E.g. Zanker v Vartzokas (P trapped in a vehicle = false imprisonment;
she was being threatened by D = assault; If P was touched, then that can constitute a battery) Therefore, you can more than
one action at the one time.
§ DAMAGES: In intentional torts, actionable per se, and damage is not needed. However, where damage is incurred, then
there will be compensation for that damage. E.g. in Zanker, the lady would’ve been awarded for injuries suffered in attempt
to escape the moving vehicle.
BATTERY
• Collins v Wilcock [1984] 1 WLR 1172
§ Comprises a direct act of the defendant which causes some physical contact with the person of the plaintiff without the
plaintiff’s consent…
Elements:
• A direct act
§ ‘Direct’ means whether the impact followed so closely on the defendant’s act that it could be considered part of the act.
(Hutchins v Maughan).
§ An act will also be considered direct if it sets in motion an unbroken series of consequences, the last of which causes contact
with the plaintiff (see Scott v Shepard (1773)).
• Physical contact
§
§
Involves immediate contact with the plaintiff. However, it is not necessary that D physically touches P. (e.g. throwing
something at someone, hitting them with a weapon or spitting on them, may constitute a battery. All considered direct acts.
Does not have to cause physical harm – “The fundamental principle, plain and incontestable, is that every person’s body is
inviolate. It has been long established that any touching of another person, however slight, may about to a battery.” (Collins
v. Wilcock per Robert Goff LJ)
• Without the Plaintiff’s consent
§ P’s consent to the alleged battery is a total defence to a claim.
§ Consent may be given expressly by words or be implied from conduct (e.g. a medical emergency).
§ A person is deemed to consent to a reasonable degree of physical contact as a result of social interaction (see Collins v
Wilcock).
• Other considerations
§ Intention is irrelevant. Must the act be intentional for it to constitute batter? à No. The D must have intended, had reckless
disregard for or been negligent with respect to the consequences of his or her actions. An involuntary act without intention,
recklessness or negligence would not be actionable. (McNamara v Duncan (1979) 26 ALR 584)
§ Mental illness and intoxication. (In general won’t result in automatism) Negative voluntariness only if the D was in a state
of automatism as a result of the intoxication or illness. I.e. The defendant had no conscious knowledge of his actions, e.g.
spasm (Morris v Marsden (1952) 1 All ER 925).
Ø If D knows that he is committing the action, even if the mental illness prevents him from understanding that his actions
are wrong, he is nevertheless liable in battery.
§ Unconscious/asleep Plaintiff. Would D be liable for battery à Yes. If the P has not consented to being touched, liability
for battery may arise even though the plaintiff is unaware of the contact.
Murray v Ministry of Defence
§ Medical treatment. Medical treatment which involves the direct touching of a patient which is performed without the
patient’s consent is a battery
Ø Advice to broad nature of treatment suffices but if treatment is given that is different to which consent was given, this
constitutes battery. Needs to be what is consented to.
Ø Exceptions: Medical emergencies, disability (but a guardian or next of kin will need to grant consent on behalf of the
patient), statutes
CASES:
• Rixon v Star City Pty Ltd (2001) 53 NSWLR 98
§ HELD: No battery. There is an implied consent to physical contact in the ordinary conduct of daily life.
Ø ‘The absence of anger or hostile attitude by the person touching another is not a satisfactory basis for concluding the
touching was not a battery.’ [52]
Ø However, ‘It could not be said that the conduct of Mr Sheldon… for the purposes of engaging Mr Rixon’s attention, was no
generally acceptable in the ordinary conduct of daily life.’ [55]
§
Ø
Ø
Ø
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FACTS: Concerning treatment of an ‘exluded person’ (the P) at a casino.
Rixon was excluded from the casino pursuant to the Casino Control Act 1992 (NSW) but he entered the premises and was
seen playing roulette
Employees approached him and accompanied him to an ‘interview room’ where he remained for 1.5 hours until the police
arrived
According to Rixon, the employee had grabbed him on the shoulder to turn him around (and he had felt pain in his neck)
Although going to the room without physical force, he went in the believe that if he did not go, he would be taken; not
permitted to go to the toilet
ISSUE: Did the employee’s touching of the P on the shoulder constitute a battery?
• Fontin v Katapodis [1962] HCA 63
§
HELD: Battery. 1. There is a legal right to defend oneself, but this self-defence must be ‘reasonable’ and ‘necessary’. 2.
Provocation is not a defence in battery.
§
Ø
Ø
FACTS: Concerning treatment of an ‘exluded person’ (the P) at a casino.
Katapodis accused of not paying for goods (for which he had in fact paid) by Fontin.
Katapodis went home and got receipt to prove purchase, and was subsequently told the matter was settled. Katapodis called
Fontin “a bad man” and made an insulting remark to him. Fontin replied to Katapodis in a similar fashion.